In my last post I discussed a recent dust-up in the ivory tower of bible blogging. I’ve said my bit about the morality of the situation, so I don’t want to flog a dead pony. But I do want to say something about DMCA.

Specifically this is a response to Joel Watt’s insistance that, because WordPress* acted to take down Neil’s post, then they must have seen that it violated copyright, so all us armchair lawyers arguing about whether it was a violation or not need to shut up because they employ proper legal experts, and they’ve shown their verdict by their action to take down the post.

That suggestion fundamentally misunderstands the DMCA and why it is widely viewed as a threat to free speech rights.

OCILLA

The Digital Millenium Copyright Act contains the US implementation of the World Intellectual Property Organization’s 1996 International Copyright Treaty. Although “DMCA” is informally used worldwide among free-speech and internet activists, DMCA is strictly only the US instantiation of the general idea, and even then we really mean part of the act. That key part is the Online Copyright Infringement Liability Limitation Act (OCILLA), which sits in federal law in US Code Title 17, section 512.

The purpose of OCILLA is to limit the legal liability of hosting companies for copyright-violating content on their servers.

To take advantage of limited liability, a service provider (the web-company hosting the data) must follow a compatible protocol. They must provide a mechanism for copyright holders or their agents to notify them of a copyright violation [§512 c.3.A]. This is known as a Take Down request. They must respond by removing the allegedly violating content from public access ‘expeditiously’.

Now, if that were all, the person who published the material could sue the service provider for wrongly taking down their content (for loss of earnings, or loss of reputation, say). But OCILLA limits liability there too [§512 g.1], via a counter-notification, or what is called a Put Back request [§512 g.3]: the service provider can limit its liability for unfair take-downs, providing it has a mechanism for the alleged violator or their agent to request the content be Put Back.

In the event of a Put Back request, the web company notifies the party that made the Take Down request (i.e. the alleged copyright holder). So all parties are aware that the copyright claim is contested, but the content remains removed pending resolution.

The copyright holder then has 10 business days [§512 g.2.B] to file for a copyright violation injunction in an applicable jurisdiction (i.e. through the courts, not through the service provider). If no such suit is filed, then after 14 days, the content should be expeditiously returned to the web.

Who Decides?

Notice something important here; very important.

OCILLA was specifically created so the service provider does not have to determine whether copyright was violated. At no point in this process does the company have to determine whether the request is valid, whether copyright was actually violated, etc. When a service provider removes content, they are not agreeing that it is violating copyright, they are merely declining to be legally liable if it later turns out to be.

So WordPress removed Neil’s post not because it thought it was copyright violation (in fact, it is strictly neutral on the matter). But because it didn’t want to be liable in a later suit brought by Joel. And that’s the only sane response. If they hadn’t removed the content, and Joel brought suit, you can bet Joel’s lawyers would have named WordPress as co-defendants, with a correspondingly higher damages claim, and so on. Even if unfounded, defending this case would cost WordPress money.

The purpose of OCILLA is to say that the company has no liability to either side in the legal dispute as long as they take down the content straight away, regardless of whether it is violating or not.

Now, some companies might employ people to look at Take Down notices and weed out those that are obviously malicious, such as John Doe issuing a Takedown on EMI. But they aren’t going to employ expensive copyright lawyers to do that, they’re going to be the most basic first-line support staff. Any checks they do make are going to be highly conservative, and are offered as a service to their customers (particularly their advertisers). They have no legal need to adjudicate, and in fact good legal reasons not to.

So the idea that some legally savvy person in WordPress looked at Joel’s site, weighed up the Creative Commons license and his copyright footer, understood the way Joel intended them to interact, and decided that copyright had been infringed and that the claim should proceed to the next level, is nonsense. The law doesn’t work that way, because it was specifically designed not to.

Why it Matters for You

Which brings me to the real point beyond this particular spat. This provision in the DMCA is a superb tool for stifling debate and free speech. It is very likely that you will get content taken down if you issue a Take Down notice against a not-very-prominent individual. And this fact hasn’t escaped folks like the Church of Scientology, who use this tactic regularly to bring down material that is critical of them.

So DMCA is a very easy way to remove material you don’t like. There is no timely legal protection for the person who’s material is removed**. And the fact of a removal tells you nothing whatsoever about the legitimacy of the claim.

This is why the Electronic Frontier Foundation (see the Chilling Effects site) and other free-speech groups have been screaming loudly about DMCA for years. It is a bad law that inhibits genuine discussion and can easy be used to stifle debate and hassle content creators***.

Now, I suspect Joel wasn’t using DMCA that cynically. And he’s admitted the whole thing got out of hand and that the resulting take down was a step too far. But the idea that only genuine copyright infringements can be successfully taken down is simply false.

I think we should all be angry about OCILLA, and we should all feel the chilling effects.

—

* I’ve called the company WordPress, but Automattic is the parent company, so if you read Joel or Neil’s posts on, they use both names.

** Often content is never returned because (as Neil has) the content creator moves elsewhere; or it isn’t worth the hassle of issuing a Put Back request; or because the ‘copyright holder’ files a boilerplate lawsuit, which removes the 14-day time limit, and which the content creator can’t afford to contes. Chances are, content subject to a Take Down notice will not be seen again. And then (as Joel has in this case) the person issuing the Take Down notice can claim their take down was clearly justified.

*** One nasty part of OCILLA [§512 h] that isn’t in play in this case, is its provision to subpoena the identity and contact information of the alleged infringing party, before the claim has been considered. So if someone is being rude about you, anonymously, you can issue a take down notice, and ask for a subpoena for their identity, without having to prove your case. All you need to is swear that you only want their identity in order to bring this claim [§512 h.2.C] – an oath that would be very difficult to demonstrate you broke.

Edit: Added references to the US Code, Title 17, where you can read the actual provisions in situ.

Informative — I did not know anything about this. Thanks.
Neil was the one offended here in more way than one, it seems to me.

WordPress actually took down my site for 3 days about 3 years ago. I used someone’s art (back in the day that I was not careful about that) and they reported me to WordPress. I wrote and apologized to the artist, and offered to put up all sorts of credit to her and direct people to her site but she was actually very offensive in her reply to me so I just took her picture down and told WordPress I had and they let my site back up.

Very different thing, of course, but it teaches us that we need to back up our site because they are not ours.

Thanks Sabio – I agree, even if you own your own server, you lease bandwidth and facilities from others, and the DMCA works for them too. Online we all speak only at the benign tolerance of our overlords.

I’ve issued DMCA take down requests, I have to say. Most recently on someone who posted a large article of mine without attribution. When she responded, we had quite a good chat. She apologised, we worked out a way for her to get the benefit she wanted without me being out of potential sales, I granted her a specific license for that use, and everything was very positive.

@Neil, yeah, I’m not so interested in adjudicating the spat itself. I was motivated to write this post more because it seemed like a contingent thought the DMCA was no big deal, and I personally think it is a serious problem. Its easy to forget that we’re largely being critical of the conservative Christian hegemony here (as a historical scholar, I include Joel among the critical voices). But were our target a different sect or cult, we’d all be much more familiar with the law, I suspect!

Interesting. I suspected something like this was the case when I saw that the person requesting the take down is required to swear under penalty of perjury that his copyright is being violated. If you were just asking WP to make a determination, you wouldn’t be asked to do that.